Lord Atkin.-

These are two appeals against conviction and sentence by the High Court of Judicature at Patna. The appeal of Gaya Prasad was brought by special leave of the Privy Council after an application for leave to appeal had been refused by the High Court. The appeal of Dwarkanath Varma was by leave of the High Court granted after the special leave had been given to the other appellant. Both appeals were consolidated by order of the High Court. The accused were tried before a Bench of the High Court consisting of the Chief Justice and Kulwant Sahay and Dhavle, JJ., and a special jury of nine persons, on an information exhibited by the Government Advocate by the direction and with the sanction of the Local Government pursuant to S. 17 of the Letters Patent, constituting the High Court and S. 194, Criminal P. C., 1898. The appellant Gaya Prasad, an Assistant Civil Surgeon, hereinafter called the doctor, was convicted of perjury and sentenced to five years' rigorous imprisonment; the appellant Dwarkanath Varma, a Sub-Inspector of Police, hereinafter called the Sub-Inspector, was convicted of conspiring with Ritbhanjan Singh, Subedar Singh and Ramdhani Singh and Gaya Prasad to fabricate and give false evidence in Court with the intent to procure conviction for a capital offence of six named persons in breach of S.120-B, I. P. C.; and was also convicted of fabricating evidence in six particulars intending to cause the same six persons to be convicted of culpable homicide amounting to murder in breach of S. 194, I. P. C. He was sentenced on each of these charges to ten years' rigorous imprisonment, the sentences to run concurrently.

At the conclusion of the appeal their Lordships announced that they would humbly advise His Majesty to allow both appeals and to set aside the convictions, and would give their reasons later, as they now proceed to do. The case was one of some complexity involving questions of considerable medico-legal interest. It has resulted in a miscarriage of justice which has caused two persons of apparently hitherto unblemished reputations to be wrongly convicted of serious offences and to receive sentences of long terms of imprisonment, part of which they had to undergo. It will be necessary to go into some detail in order to explain in what circumstances this unfortunate result occurred.

On 2nd August 1928, the Sub-Inspector, who was stationed at Rohtas in the Province of Bihar and Orissa, was in the course of his duties when in the afternoon complaint was made to him by two men, Ritbhanjan Singh and Subedar Singh, of the village of Balbhadarpur, that at about 2 p. m. of that afternoon they and Ramdhani Singh had seen in Ritbhanjan's paddy field six men, Issardeyal Singh, Sheotahal Singh, his son, Lokan Singh, Muneshar Singh and Mundrika Singh (sons of Lokan) and Jitu Singh assaulting Rhitbhanjan's nephew, Jamadar Singh, with kicks, blows and sticks. Jamadar Singh told them that the bullocks of Issardeyal and Lokan were grazing in the field and that he was driving them away to impound them when he was attacked. The three men carried Jamadar to the village and there he died. They had left the dead body on the ground and had run to report the occurrence to the Sub-Inspector. Proceeding to the village he met Issardeyal and Muneshwar; they denied the charge and alleged that while in their field they had been told by Dhanmantia, daughter of Lokan, that Jamadar had died; and that Jamadar's relations had assaulted Phulkumari, a female relative of Issardeyal, on the ground that by witchcraft she had brought about Jamadar's death. They said that Jamadar had been ill of cholera for three or four days and had died of it that day. The Sub-Inspector proceeded to make inquiries. In the result he arrested the six accused men for murder. He came to the conclusion that the story of the assault on the old lady was false. That same evening, in accordance with his duty, he dispatched the body of Jamadar for post-mortem examinatio